Stevens-Rucker v. Frenz Petition for Writ of Certiorari

    UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

No. 17,113

MERCER BRATCHER, ET AL.,

Plaintiffs-Appallants,

v.

THE AKRON AREA BOARD OF REALTORS, ET AL.,

Dafandants-Appalleas.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF OHIO, EASTERN DIVISION

SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

DONALD F. TURNER,
Assistant Attornay General,

STEPHEN G. BREYER,
Attornay.
Daparftnt of justice, 
Washington, D. C., 20530.



I N D E X

Page
Interest of the United States ....................................  1
Supplemental brief for the United States as amicus curiae . . . .  2

CITATIONS
Cases:

Apex Hosiery Co. v. Leader, 310 U.S. 469 ...................  6
Atlantic City Electric Co. v. General Electric Co.. 226 F.

Supp. 5 9 ..............................................  5
Bookout v. Shine Chain Theaters, Inc.. 253 F. 2d 292 . . . .  9
Brown Shoe Co. v. United States. 370 U.S. 294 ............. 6
Centonni v. T. Smith & Son. 216 F. Supp. 330 ............... 9
Chattanooga Foundry & Pipe Works v. City of Atlanta. 203 U.S.

390 ..................................................... 4, 7
Comaonwealth Edison v. AllIs-Chalmers Mfg. Co. 335 F. 2d 203 7, 8
Conference of Studio Unions v. Loew's Inc.. 193 F. 2d 51 . . 9
Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S.

690 ..................................................... 10
Feddersen Motors, Inc, v. Ward. 180 F. 2d 5 1 9 ............. 6
Georgia v. Evans. 316 U.S. 1 5 9 .............................. 4, 7
Gomberg v. Midvale Co.. 157 F. Supp. 1 3 2 ...................  9
Hanover Shoe Inc. v. United Shoe Machinery Corp.. 185 F.

Supp. 826, affirmed 281 F. 2d 481, cert, denied 364 U.S.
9 0 1 ..................................................... 7, 8

Leh v. General Petroleum Corp.. 382 U.S. 5 4 ............... 5
Louisiana Petroleum Retail Dealers, Inc, v. Texas Co.. 148

F. Supp. 334 ..........................................  3
Mandeville Is1And Farms, Inc, v. American Crystal Sugar Co..

334 U.S. 2 1 9 ..........................................  4, 7
Minnesota Mining & Manufacturing Co. v. New Jersey Wood

Finishing Co.. 381 U.S. 3 1 1 ............................ 5
Nagler v. Admiral Corp.. 248 F. 2d 3 1 9 ......................  11
Noerr Motor Freight. Inc, v. Eastern Railroad Presidents

Conference. 113 F. Supp. 737 .........................  11
Package Closure Corp. v. Sealright Co.. 141 F. 2d 972 . . .  11
Radovich v. National Football League. 352 U.S. 445 ........  5, 10



Cases [Continued]: Page
Rossi v. McCloskey & Co., 149 F. Supp. 638 .................  9
Schulman v. Burlington Industries, Inc., 255 F. Supp. 847 . 9, 10
Snow Crest Beverages. Inc, v. Recipe Foods. Inc.. 147 F. Supp.

907 ........................................................ 9
South Carolina Council of Milk Producers. Inc, v. Newton, 360

F. 2d 4 1 4 .................................................  9
State of Illinois v. Brunswick Corp., 32 F.R.D. 453 . . . .  8
State of Missouri v. Stupp Bros. Bridge & Iron Co., 248 F.

Supp. 1 6 9 .................................................  7
Streiffer v. Seafarers Seachest Corp., 162 F. Supp. 602 . . 7
Thomsen v. Kayser, 243 U.S. 6 6 ..................................  4, 7
United States v. Borden Co., 347 U.S. 5 1 4 ...................... 3, 8

Statutes:
Clayton Act, 15 U.S.C. 15, et seq.j

Section 4 ............................................... 3, 5, 6
Section 1 6 ............................................  2, 5, 6

Miscellaneous:
Clark: "The Treble Damage Bonanza: New Doctrines of Damages

in Private Antitrust Suits," 52 Mich. L. Rev. 363 . . .  8
Note, 64 Columb. L. Rev. 570 ( 1 9 6 4 ) .......................  6



u n i t e d sta tes c o u r t of a p p eals 
FOR THE SIXTH CIRCUIT

Ho. 17,113

MERCER BRATCHER, ET AL., APPELLANTS 

v.

THE AKRON AREA BOARD OF REALTORS, ET AL., APPELLEES

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION

SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

Th« United States wishes to file this suppleaental brief aaicus 

curias in support of appellants because it believes that the arguments 

aada In Defendants' Brief are erroneous and believes that their 

acceptance by this Court would interefere with efficient antitrust law 
enforceaant.

_1/ "Defendants' Brief" refers to the Brief on Behalf of All Defendant 
Appellees Except First National Bank of Akron and Herberlch-Hall-Harter Inc.



SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

Appellants have brought this suit on behalf of (1) Negroes wishing 

to buy or rent houses in white neighborhoods in Akron, (2) white hone 

owners who wish to sell or rent such houses to Negroes, and (3) Negro 

real estate dealers who wish to belong to the Akron Area Board of Realtors. 

The Conplaint charges that nambers of the defendant board of realtors 

have agreed not to sell houses in white neighborhoods to Negro custoawrs 

and to exclude Negro real estate dealers fron their board. Defendants 

claim that none of the three gremps of persons that plaintiffs represent 

has standing to sue. The Government submits that— to the contrary— all 

three groups have standing.

Appellants are bringing this suit, which asks for an injunction,
_2/

under Section 16 of the Clayton Act, 15 U.S.C. 26. They have standing 

to sue if they meet the requirements of that section by alleging facts 

which show (1) that they personally are "threatened" with "loss or damage,"

(2) that the activity threatening them violates the antitrust laws, and

(3) that they are entitled to an injunction under traditional principles

2/ Section 16 provides in relevant part: "Any person . . . shall be
entitled to sue for and have injunctive relief . . . against threatened 
loss or damage by a violation of the antitrust laws . . . when and under 
the same conditions and principles as injunctive relief against threatened 
conduct that will cause loss or damage is granted by courts of equity . . . 
15 U.S.C. 26.

2



of equity. United Stefa v. Borden Co., 347 U.S. 514, 518; Louisiana

Petroleum Retail Dealer*, Inc. v. Texaa Co.. 148 F. Supp. 334, 336

(W.D. La. 1956). Defendants argue that the appellants must also satisfy
3/the requirements of Section 4 of the Clayton Act, 15 U.S.C. 15,—  

(applicable to treble damage plaintiffs) by alleging facts which show 

an injury to appellants "business or property."

Appellants' complaint satisfies all these requirements. First, 

it charges that defendants' conspiracy threatened plaintiffs with 

personal "loss or damage" to their "business or property." It claims 

that defendants' conspiracy injures the business of plaintiff real 

estate brokers by denying them the "benefits of membership on the 

Board, thereby restraining [their] . . . sale and rental of real prop­

erty." (Complaint VII C). It claisw that the conspiracy— in preventing 

willing homeowners from selling property in white neighborhoods to 

Negroes— directly injures other Negro plaintiffs by artificially re­

stricting where they can live (Complaint VII, E, F), and it injures 

their property by forcing them "to pay more money than white persons 

for equivalent housing" (Complaint VII 6). And, it claims that the

3/ Section 4 provides in relevant part: "Any person who shall be
injured in his business or property by reason of anything forbidden 
in the antitrust laws may sue therefor . . . and shall recover three­
fold the damages by him sustained . . . ." 15 U.S.C. 15.

3



conspiracy injura* cha proparty of whita plaintiffs by dapriving than 

of "tha opportunity to sail or rant real proparty nora . . . profitably" 

(Conplaint VII H). A conspiracy that forcas a buyar to pay higher prices 

or a sailer to sell at lower prices injures tha "property" of tha buyar 

and of the sellar. Chattanooga Foundry & Pipe Works v. City of Atlanta, 

203 U.S. 390; Mandeville Island Farna, Inc, v. Anarlean Crystal Sugar Co.. 

334 U.S. 219; Georgia v. Evans, 316 U.S. 159; Thonsen v. Kaysar, 243 U.S. 

66.
Second, the conplaint alleges facts which, if proved, would show 

that defendants' conspiracy violates tha antitrust laws. Our argunent 

to this affect is sat out in Brief for tha United States as Anicus Curiae, 

pp. 17-22, to which we refer the Court. Third, if defendants prove the 

facts alleged in their conplaint, they will have shown that they are 

entitled to an injunction under ordinary principles of equity, because 

they will have shown a substantial serious personal injury caused by 

defendants' illegal conduct, because an injunction will not prove 

inequitably burdensone to defendants, and, since the conspiracy is a 

continuing one and since damages for at least some of the injury that 

it causes plaintiffs may be hard to assess in monetary terms, because 

plaintiffs' remedy at law is inadequate.

4



We do not mean to suggest by this discussion that we accept defen­

dants' argument that plaintiffs in an action brought under Section 16 

nust also sect Section 4's requirement of showing an injury to "business 

or property"--particularly if the words "business or property" are inter­

preted restrictively. While it may make sense in damage actions to limit 

the type of harm for which money can be recovered to injuries to business 

or property— injuries the dollar value of which can be more or less readily 

ascertained--there is no reason to limit the type of harm that will jus­

tify the issuance of an injunction to injuries that can be easily labeled 

with a price tag. Moreover, the fact of a strong Congressional policy 

favoring private antitrust actions, "one of the surest weapons for effec­

tive enforcement of the antitrust laws," Minnesota Mining & Manufacturing 

Co. v. New Jersey Wood Finishing Co., 381 U.S, 311, 318; Atlantic City 

Electric Co., v. General Electric Co., 226 F. Supp. 59, 71 (S.D.N.Y.1964), 

indicates that the courts should not engraft the restrictive requirements of 

Section 4 on to Section 16. In fact, the Supreme Court has expressly warned 

that the courts "should not add requirements to burden the private litigant 

beyond what is specifically set forth by Congress." Radovich v. National 

Football League, 352 U.S. 445, 454. And that Court has indicated that 

"niggardly construction[s]" of statutes governing treble damage actions should 

be avoided. Leh v. General Petroleum Corp., 382 U.S. 54, 59. See also Note,

5



64 Coluab. L. Rev., 570 (1964). But, in any event, wa submit that 

even if this Court dacidas that plaintiffs oust aaat Section 4'a 

requirements, thair complaint is adaquata, for it allagas facts suff­

icient to satisfy tha raquiraaants of both Section 16 and Section 4.

Defendants argue, however, that Negroes wishing to buy or rent 

houses in Akron's white neighborhoods and white homeowners wishing to 

sell or rent those houses to Negroes lack standing to sue because they 

are ultimate consumers and are not "businessman-competitors" of defen­

dant real estate dealers (Defendants' Brief, pp. 33-35). But there 

is no requirement that private plaintiffs be either businessmen or 

competitors of antitrust defendants. Indeed, the antitrust laws, 

which primarily protect "competition, not competitors," Brown Shoe 

Co. v. United States, 370 U.S. 294, 344, are basically designed to 

prohibit practices "which tend to raise prices or otherwise take from 

buyers or consumers the advantages which accrue to them from free com­

petition in the markets." Feddersen Motors, Inc, v. Ward, 180 F. 2d 

519, 521 (10th Cir. 1950). [Emphasis added.] The SupresM Court and 

lower courts have said over again that the Sherman Act protects "pur­

chasers and consumers," Apex Hosiery Co. v. Leader, 310 U.S. 469, 498;

6



Mandeville Island Farms Co. v. American Crystal Sugar Co., supra at

236; Streiffer v. Seafarers Seachest Corp., 162 F. Supp. 602, 607 

(E.D. La. 1958). And, they have said this for good reason, as many 

hardcore antitrust violations, such as price fixing, will not hurt 

the conspirators' competitors (indeed they may be enriched) but will 

injure only consumers. Thus, it is not surprising that courts have 

uniformly held that the antitrust laws give a private right of action 

to purchasers of the goods and services involved in the restraint, 

whether those purchasers are businessmen, e .£., Thomsen v. Kayser, 

supra; Commonwealth Edison v. Allis-Chalmers Mfg. Co., 335 F. 2d 203 

(7th Cir. 1964); Hanover Shoe, Inc, v. United Shoe Machinery Corp.,

185 F. Supp. 826 (M.D. Pa.), affirmed 281 F. 2d 481 (3rd Cir.), 

cert, denied, 364 U.S. 901 (1960), or whether they are ultimate con­

sumers. Chattanooga Foundry & Pipe Works v. City of Atlanta, supra,

(Holmes, J.: "[The City of Atlanta was] injured in its property, at 

least, if not in its business of furnishing water, by being led to 

pay more than the worth of the pipe" 203 U.S. at 396); Georgia v.

Evans, supra (Frankfurter, J.: "[Congress would not want to have 

deprived] a State,as purchaser of commodities . . . , of the civil 

remedy of treble damages which is available to other purchasers who 

suffer through violation of the Act" 316 U.S. at 162); State of 

Missouri v. Stupp Bros. Bridge & Iron Co., 248 F. Supp. 169 (W.D. Mo.

1965) ( state, as consumer of highways, sues highway equipment manufacturer);

7



Stitt of Illinois v» Brunswick Corp., 32 F.R.D. 453 (N.D. 111. 1963)

(stats, raprasanting school districts, suas makers of blaachar seats 

sold to the school districts). Cf. Hanover Shoe, Inc. v. United Shoe 

Machinery Corp., supra, at 831. See also Clark,"The Treble Damage

Bonanza: New Doctrines of Damages in Private Antitrust Suits," 52
_ 4 /

Mich. L. Rev., 363, 404 (1954).

In fact, because of the importance of private actions as an aid 

to the enforcement of the antitrust laws, sea United States v. Borden 

Co., supra, courts have held that purchasers who are middleman may 

bring private actions against suppliers engaged in a price fixing con­

spiracy even though price increases were passed on to the ultimate 

consumer. E .£., Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 

supra. It would be anomalous in the extresm to allow an antitrust 

remedy to these middlesmn while denying it to ultimate consumers when 

they bear the full brunt of an illegal conspiracy. Mora importantly, 

to deny ultimata consumers an antitrust remedy would deprive the 

government of any aid that private antitrust actions might give it in 

preventing regional conspiracies at a retail level— conspiracies that 

may not involve sufficient amounts of commerce to warrant investing the 

government's enforcement resources. In sum, we can find no good reason

4/ Suits by ultimata consumers are infrequent because normally the 
amount that could ba recovered would not justify the cost of suit.

8



for denylog plaintiff* in this casa standing to sue. Plaintiffs are 

direct customers for the services, provided by defendant real estate 

brokers. If, as plaintiffs claim, those services have been illegally 

restricted, the restriction has injured them directly

Defendants also claim that the plaintiff real estate brokers lack 

standing to sue because "they are not the persons who were intended to 

be the victims of the alleged conspiracy" (Defendants' Brief, p. 40).

5/ The cases cited by defendants are not in point for they involve 
suits (1) by a supplier to a company injured by an antitrust violation 
(Snow Crest Beverages, Inc, v. Recip* Foods, Inc., 147 F. Supp. 907 
(D. Mass. 1956)); (2) by employees of injured companies (Conference of 
Studio Unions v. Loew's. Inc.. 193 F. 2d 51 (9th Cir. 1951)); Centonni 
v. T. Smith & Son, 216 F. Supp. 330 (K.D. La. 1963); Rossi v. McCloskey 
& Co., 149 F. Supp. 638 (E.D. Pa. 1957); and (3) by shareholders of 
injured companies (Gomberg v. Midvale Co., 157 F. Supp. 132 (E.D. Pa. 
1955)); Bookout v. Shine Chain Theaters, Inc., 253 F. 2d 292 (2d Cir. 
1958). Even if the restrictive philosophy implicit in such opinions is 
correct--* question not entirely free from doubt, see South Carolina 
Council of Milk Producers, Inc, v. Newton, 360 F. 2d 414 (4th Cir. 1966); 
Schulman v. Burlington Industries, Inc., 255 F. Supp. 847 (S.D.N.Y. 1966), 
--they all involve plaintiffs who are not the direct victims of an anti­
trust conspiracy but whose injuries follow incidentially from the injury 
caused another. In each of these cases there exists a primary victim 
free to bring a private suit. In the instant case, however, Negroes 
seeking houses and white persons offering to sell them are the direct 
customers of the service allegedly restricted, and Negro real estate 
dealers are defendants' direct competitors. They are thus the direct 
and primary victims of any illegal restriction. If they cannot sue to 
obtain redress, no on* (except the government) can.

[Note: Insofar as the "employee" cases cited above involve employees
not working for an allegedly injured company, they may not state a 
cans* of action under the entitrust laws because of the labor exemp­
tion. See, Conference of Studio Union* v. Loew's Inc., supra.]

9



The complaint charges, however, that defendants "combined and conspired" 

to exclude "Negro real estate brokers from the advantages and opportun­

ities associated with membership in the defendant Board" (Complaint 

VI C 8). And, it adds that as a result of the conspiracy, "Negro real 

estate brokers have been denied benefits of membership on the Board 

thereby restraining the sale and rental of real properties by such 

brokers" (Conplaint, VIII C). It is difficult to see how that complaint 

could have alleged more clearly that plaintiff real estate brokers were 

intended direct victims of an illegal conspiracy. "It does not matter 

that defendants under the allegations may be conspiring to produce the 

restraints hurting plaintiffs only as part of an over-all scheme to 

reach still bigger game. A conspiracy in antitrust law, as elsewhere, 

may have a variety of objects and victims. Continental Ore Co. v. Union 

Carbide & Carbon Corp.. 370 U.S. 690, 698-699." Schulman v. Burlington 

Industries, Inc.. 255 F. Supp. 847, 851 (S.D.N.T. 1966). In fact, the 

Supreme Court has specifically held that a victim of an illegal boycott 

may bring a private antitrust action even though the ultimate purpose of 

the boycott may not have been to injure him. Radovich v . National Foot­

ball League, supra. Negro real estate brokers in this case qualify as 

antitrust plaintiffs, for whatever the ultimate purpose of the alleged 

illegal agraement to exclude them from the real estate board, such an 

agreement by its very nature, had to be aimed at them and had to harm 

them directly. See Schulman v. Burlington Industries. Inc., supra.

10



There is, thus, no nssd to give plaintiffs complaint that libaral 

latituda in intarpratation to which it is antitlad, sae Noerr Motor 

Freight, Inc, v. Kastarn Railroad Prasidants Confaranca, 113 F. Supp.

737, 742 (E.D. Penn. 1953); Package Closure Corp. v. Saalright Co.,

141 F. 2d 972, 979 (2d Cir. 1944); Maglar v. Admiral Corp., 248 F. 2d 

319 (2d Cir. 1957), in order to sae that it alleges that defendants' 

conspiracy in part directly aimed at and injured plaintiff real estate 

brokers.
In sum, plaintiffs in this case represent direct customers for 

the services of real estate brokers— services which defendants allegedly 

illegally restrained. They also represent direct competitors. These 

two groups of people, custoswrs and competitors, are the most important 

of all those who are protected by the antitrust laws. They, if anyone, 

were meant by Congress to have a private right of action to prevent 

violations of the antitrust laws which injure them. And by giving such 

persons private rights of action, Congress has provided an important 

aid to the enforcement of the antitrust laws. Congress clearly did not 

intend to leave antitrust enforcement of the type envisaged here entirely 

in the hands of the Government. For these reasons, we submit, plaintiffs 

do not lack standing to sue.

DONALD F. TURNER,
Assistant Attorney General,

STEPHEN G. BREYER,
Attorney.

MARCH 1967



CERTIFICATE OF SERVICE

1 hereby certify that 1 have this day caused the foregoing

Supplemental Brief Amicus Curiae to be served upon all parties

by causing a copy thereof to be mailed, postage prepaid and prop

erly addressed, to each of the following:

Jack Greenberg, Esquire 
10 Columbus Circle 
New York, New York

Sidney D. L. Jackson, Jr., Esquire 
Baker, Hostetler & Patterson 
1965 Union Commerce Building 
Cleveland, Ohio

Ivan L. Smith, Esquire 
O'Neil & Smith 
16 South Broadway 
Akron, Ohio 44308

C. Blake McDowell, Jr., Esquire 
Brouse, McDowell, May, Bierce & Wortman 
500 First National Tower 
Akron, Ohio 43308

V /K
Stephen G. Breyer 

Attorney

MARCH 1 0t 1967